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2017 (9) TMI 702 - HC - Central ExciseRefund claim - unjust enrichment - Classification of goods - power driven pumps (Mono Block Pump Sets) - The assessee claimed these stators and rotors as parts of mono bloc pump sets which were exempted under Tariff Item 68 as per N/N. 73/68 - Revenue took a view that the rotors and stators are parts of motor failing under Tariff Item 30-D and should suffer duty before they were captively used in the manufacture of mono bloc pumps - Whether the Tribunal is right in ordering refund based on its earlier decision, when the question of refund is barred by limitation? - Held that: - For the failure to record a finding specifically that the duty paid for the period beyond 1983 up to 28.02.1986 has been passed on to the others and, consequently, the claim would amount to unjust enrichment, on the part of both the adjudicating authority and the appellate authority, the Tribunal has arrived at the correct conclusion. The claim for refund is maintainable and the said claim is not barred by limitation, as was held by the Commissioner (Appeals) on 18.07.2005 has attained finality. So, the question of examining the claim for refund on merits does not arise now, once again. The only area of scrutiny is liable to be confined as to whether the actual refund to the assessee would amount to unjust enrichment. This question is not examined from the point of finding out as to whether duty burden is already passed on to the others or not. Surmises and conjectures are drawn by setting out that though Excise Duty is not shown separately in the bills or invoices, but, in the absence of supporting documents that the burden of duty has not been passed on to the others, the claim for refund is rejected. If the burden of Excise Duty is passed on to the others, it gets reflected in the Bills and invoices. That is a positive evidence. That was produced to show that no such burden is passed off. It is, thus, clear that far from finding out as to whether or not the duty burden has been passed on to the others, the adjudicating and appellate authority have gone about looking for negative evidence. Clearly, the very approach is wrong. Appeal dismissed - decided against Revenue.
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